Comment by chaps
3 years ago
The carve-out you mention is a decent idea on paper, but in practice is a difficult process. There's really no way to do it in any significant degree without basically putting all gov to a complete halt. Consider that government is not staffed with technical people, nor necessarily critically minded people to implement these systems.
There are ways to push for FOIA improvements that don't require this sort of drastic approach. Problem is, it takes a lot of effort on the parts of FOIA requesters, through litigation and change in the laws. Things get surprisingly nuanced when you really get down into what a "record" is, specifically for digital information. I definitely wouldn't want to have "data" open by default in this manner, because it would lead to privacy hell.
Another component of this all is to consider contractors and subcontractors. Would they fall under this? If so, to what degree? If not, how do we prevent laundering of information through contractors/subcontractors?
To a large degree, a lot of "positive" transparency movements like the one you suggest can ironically lead to reduced transparency in some of the more critical sides of transparency. A good example of that is "open data", which gives an appearance of providing complete data, but without the legal requirements to enforce it. Makes gov look good but it de-incentivizes transparency pushback and there's little way to identify whether all relevant information is truly exposed. I would imagine similar would happen here.
A private right of action and waiver of immunity solves most of the “bad actor” problems.
The big issue is how to preserve what actually needs to be secret (in the interest of the USA, not the interests of the bureaucracy) while forcing everything else to be public.
A lot of things are secret that don’t need to be secret; that’s a side effect of mandatory data classification and normal bureaucratic incentives- you won’t get in trouble for over-classifying, and classified information is a source of bureaucratic power. So you have to introduce a really strong personal incentive to offset that or nothing will ever change.
Personally, I don’t think that information should be classified if it came from public sources. Or maybe only allow such information to be classified for a short period of time, eg one year.
The longer and/or higher the classification level, the more effort should be involved, to create disincentives to over-classification.
I'm sorry, but very little of what you're saying makes sense in practice. I suggest submitting some FOIA requests to your local government to get some context and understanding of the difficulties.